Court issues mixed decision on DEP ‘waiver’ rules

TRENTON – The Department of Environmental Protection has received a mixed decision from the courts regarding the so-called ‘waiver’ rules.

The appellate court this morning upheld DEP’s authority to promulgate the waiver rules and found they contain adequate standards.

However, the court also stated that: “We reject, however, the documents posted on the agency’s website as violative of the APA,” the Administrative Procedures Act.

The waiver was part of Executive Order 2, one of the Christie administration’s earliest attempts to streamline red-tape and reduce bureaucracy, but environmentalists cried foul, claiming it was just an attempt at an end-run around rules in place to protect water and air.

Numerous organizations had fought the waiver rule in court, including the American Littoral Society, Communications Workers of America, Highlands Coalition, Pinelands Preservation Alliance, United Steelworkers, and the Sierra Club.

They had argued, among other things, that a “blanket’’ waiver rule goes against legislative intent to keep such exemptions very limited.

DEP maintains that “where the Department has the authority to promulgate rules, it also has the authority to  modify or waive those rules, provided that the modification or waiver does not violate a statutory requirement or purpose,” the court stated.

“Thus, although specific enabling statutes direct DEP to  promulgate rules for the regulatory program created therein, there can be no question, given the overall legislative scheme, that DEP is empowered to adopt regulations more ‘universal’ in nature and of more general applicability to deal comprehensively, in a single set of rules, with the sheer scope  of overlapping statutory programs the agency must administer as  well as with the volume of interconnected activities the Commissioner must coordinate amongst the agency’s various divisions.”

However, the court took DEP to task for the details on its web site for waiver implementation.

‘Despite DEP’s attempts to validate each of its  online documents, nowhere in the waiver rules does the agency  explain what specific materials should be submitted with a waiver application, what materials it will consider for application completion or waiver approval, or how it will conduct its review.”

“Simply put, as DEP’s own explanation makes clear, these  postings do more than implement the waiver rule; they establish rules of the game.”

As such, they are subject to APA rule making, the court said.

“These missing links, we conclude, must be developed by DEP through notice and comment rulemaking.”

Court issues mixed decision on DEP ‘waiver’ rules